Reno Air Race Lawsuits and the Assumption of Risk Defense

There are obvious dangers inherent in events such as the Reno Air Races. The victims of the disaster were undoubtedly aware of those dangers and attended the event anyway. Does that mean they should not be able to file lawsuits to obtain compensation for their loss? 

Not at all.

Granted, Life is Full of Risks

There are risks involved in most everything. We take a chance every time we cross the street. But it’s nonetheless reasonable for us to believe we will be safe when we are in the crosswalk. When we use the crosswalk, we are where we are supposed to be.

If an SUV hits someone in the crosswalk, we may all agree it was “just an accident.” Yet, we require the driver to compensate the pedestrian for his injuries. If the driver couldn’t see the pedestrian because the crosswalk was poorly designed, we might require the city to compensate the pedestrian. In either case, we don’t tell the pedestrian that he is out of luck because he assumed the risks of getting hit by a car.

It doesn’t matter that the driver had a very good driving record up to that point in time. While we don’t punish those responsible for an accident, we do hold them accountable and require them to compensate the person who, through no fault of their own, is seriously hurt.

The victims at Reno undoubtedly understood that there were risks associated with the Air Races. But they were exactly where they were supposed to be. Sure, the crash was an accident. But that doesn’t mean whoever is responsible for the injuries – whether that is a mechanic or a course designer -- shouldn’t compensate the victims for their losses.

The Race Sponsors Were Supposed to Provide Patrons with a Safe Viewing Area

Some say that Nevada law lets sponsors off the hook for injuries to spectators.  And it's true that, in Turner v. Mandalay Sports Entertainment, the Nevada Supreme Court said that a baseball stadium was not responsible for serious injuries a fan sustained when she was struck by a foul ball. But in that case, the fan was not in the viewing area. Had the fan been injured in a viewing area, the result might have been different. That’s because the court recognized that a ballpark has a duty to provide the patrons with at least some designated safe seating.

Once a stadium owner or operator complies with the rule's requirements by providing sufficient protected seating, the owner or operator has satisfied the legal duty of protection owed to its patrons.

The Reno Air Race victims were in the designated viewing area. They were exactly wReno Air Race Tickethere they were supposed to be. But it appears that the sponsors failed to ensure that the area was safe. Turner v. Mandalay would thus seem to support the victims’ claims for compensation, not undercut it.  

The Language on the Ticket Is Not a Contract

A reader of this post noted that, according to the tickets sold for the event, the spectators voluntarily assumed all the risks and released the event sponsors from liability for any injuries.  Isn’t that the end of the matter?

No.

Sure, a spectator can, by contract, agree ahead of time not to sue if he is injured, even if the person who caused the injury was negligent. But for there to be a contract, there has to be an agreement. If the spectator actually signed something, then that would be one thing. Without the victim’s signature, the fine print on the ticket won’t be binding on anyone. 

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Comments (16) Read through and enter the discussion with the form at the end
David Huffman - September 23, 2011 10:43 PM

I personally think the biggest threat to aviation are lawyers. I am glad that you do not attend airshows any more. I have been performing at airshows since the early 90's in various warbirds. Airshows represent one of the safest entertainment events for spectators. Unfortunately some performers die each year. But the last time I checked every performer chose to be there. There is an inherent risk in inhabiting the earth and having free will. I am confident that you will be able to continue to make a living representing people who have been traumatized watching an accident. I gave up being an aviation expert witness because I could no longer tolerate the lawyers attitude of win at any cost including dismissing the truth. I began asking the judges why lawyers are not sworn in like witnesses to tell the truth, the whole truth and nothing but the truth. Some explained to me that our justice system cannot exist if the lawyers were held to the same standards as witnesses. I have seen lawyers withhold evidence that would change the verdict of their case. They have repeatedly told me that they are there to win a case, not to expose all true facts. These are some of the reasons I believe that if a plaintiff does not prevail they should be required to pay all of the court costs and defendants costs. Future earnings awards should be based on facts not winning the lottery. Pain and suffering awards are mainly BS. Medical expenses, loss of income and replacement/restoration of property damage should be the absolute limit of any award. But I just realized that wouldn't work because there wouldn't be any money for the lawyers........

Diana Morgan - September 24, 2011 7:02 AM

David, I have been following this site since hours after the crash. I read the comments and marvel at the intellectuals out there with different theories and open minds while being respectful to each other. Your comment should have been addressed to Dr. Phil. You contributed zippety doo dah to an aviation safety blog. Who cares about what you think of lawyers? I suggest you stop embarassing yourself.

Sam - September 24, 2011 10:31 AM

Would you elaborate on why the waiver clause is unenforceable? Aren't forum selection clauses on tickets generally enforceable, even without a signature? Is the difference that the waiver clause is considered unconscionable?

Mike Danko - September 24, 2011 1:49 PM

@David: Say a 27 year-old victim of the Air Race disaster lost his legs. He'll be in the hospital for a few weeks, learn how to transfer himself from his bed to a wheelchair and then be sent home. He will use up all his personal time at work but he might be back to his job as an accountant without even losing any salary.

He can do his job from the wheelchair, so he won't really have any lost wages. But he can't play basketball with his sons, or rollerblade with them. Ever again. The beach is out, because wheelchairs and beaches don't mix. And, of course, he has to give up his road bike.

Lots of other changes too. Like not being able to stand up when he shakes someone's hand. He won't be able to visit some of his friends anymore because their homes aren't wheelchair accessible. (All those steps!) And he gets to worry about blowing out his rotator cuff. Because when that happens, he won't be able to push himself around at all. No doubt about it, our 27 year-old has some significant "pain and suffering" headed his way.

The vice president of the Unlimited Racing Class, Matt Jackson, told the Reno Gazette-Journal that the accident was Leeward's fault. Jackson pretty much said that everything we described here and here was spot on. The reason the trim tab separated, according to Jackson, is because Leeward used it to control the aircraft's pitch. A big no-no. Pilot error, plain and simple.

Nonetheless, you would have Leeward's estate pay for our hypothetical victim's hospital stay and $1000 for a nice wheelchair. And that's it. No compensation for the loss of his legs, because you feel pain and suffering awards are "BS." You believe that "medical expenses, loss of income and replacement/restoration of property damage should be the absolute limit of any award."

I'm having a hard time understanding your position. Even if our victim is compensated millions of dollars by a jury, it would be a stretch to say that he had hit the "lawsuit lottery." Like any of my clients, he would give the money back in a New York second if he could turn back the clock to before he was injured.

I have yet to hear from a performer who *doesn't* think the show should go on. After all, they love to perform. ("Look at me! Look at me!") I guess it's to heck with the spectators -- they have it coming.

David, I don't begrudge a pilot taking whatever personal risks he wants to take over the desert. If a pilot screws up and kills himself, that's his business. But if he screws up and kills or injures someone else, he -- or his estate -- needs to take some responsibility for that, don't you think? And why would that not include compensation for pain and suffering?

I appreciate your comment. I'm being a little hard on you because you were a professional witness. You are used to explaining things. I would like you to help me understand your position, because it makes no sense to me.

Mike Danko - September 24, 2011 2:03 PM

@Sam -

It has nothing to do with unconscionability. Waivers and forum selection clauses are contracts. For there to be a contract, there has to be an agreement. Just because you bought the ticket, it doesn't mean you agreed to the terms printed on it. In fact, it's unlikely you even read the terms before you paid your money.

The reason why this is confusing is because people are used to seeing language on tickets from, for example, parking garages that says something like "This ticket limits our liability, read it!" Some states have enacted laws that make those particular "disclaimers" binding, even if the patron never read the ticket or agreed to its terms. No such law here, as far as I know.

Sam Fischer - September 25, 2011 7:47 AM

You are suggesting that the clause on the ticket doesn't constitute a "contract" or "agreement." Would you stand by that argument if you were representing the Air Races and I had decided to flaunt the next clause on the ticket to sell photos and video I had produced while at the event?

Furthermore, the premise here has been that the trim tab separated due to flutter or improper pilot technique. Both of those can be aimed at Mr. Leeward and his (not insubstantial) estate. But, what if bird feathers and blood had been found on the trim tab? Who would be responsible for paying the pain and suffering claims then?

Lastly, given that *somebody* must be responsible, what avenue - if any - remains for continuing activities such as air shows and air races? Planes moving at high speed can travel great distances in very short order. Make the planes slow enough to reasonably avoid damage and the public won't bother attending. Moving the crowd line back to a "safe distance" gives the same outcome. Nobody will attend, whether free or paid, to "watch" a bunch of dots from 2 miles away. And even 2 miles is too near if the aircraft is out of control. From 9,000 feet, Voodoo could have landed most anywhere in a 3-4 mile radius if Bob Hannah hadn't regained consciousness.

As you suggest at the start, life is filled with risks. Neither tomes of ridiculous legislation nor trillions of dollars in lawsuits will change that. If the risks outweigh the reward, then people should stay at home on their sofas.

Mike Danko - September 25, 2011 9:47 AM

Sam -

Interesting comments.

Clause as contract: The law recognizes that one who is injured has the right to be compensated by those who cause the injury. The clause on the ticket does not constitute a contract that waives those rights. On the other hand, the law does *not* necessarily recognize one's right to take photographs of an event sponsored by another and make money off of them. So a different analysis applies to the language concerning photos.

Bird strike: It would be a stretch to blame the pilot for a bird strike in this scenario. On the other hand, it is certainly foreseeable that a race aircraft could strike a bird, and that it could result in loss of control of the aircraft. The course was supposed to be designed so as to protect the spectators in case an aircraft, for any reason, was damaged and went out of control. So while the pilot's estate might be absolved in the event of a bird strike, the race sponsors would not.

The future: No reason why the Air Races cannot continue, future champions be crowned, and records broken. But, as you say, I doubt spectators will be interested in *paying* to view those races, in person, from a distance that is safe. If spectators are allowed to remain dangerously close, then insurance costs for the event will likely be much higher. Either way, the race sponsors are likely to find that the event is not as profitable as it was for them in the past.

Scott - October 1, 2011 2:23 PM

Going to an event like this has its dangers. If you do not wish to accept the possible outcome of these dangers than do not go. This is just like those idiots who get hit by a foul ball in baseball and sue the ballpark. If you want to be safe, stay at home. The example given in the article about the cross walk is idiotic because there is no ticket you have to buy to cross the street. There is no waiver posted or warning signs that you might get hit by a car.
These people either knew the risk, or were too lazy and apathetic to take the time to read the fine print and they should not be awarded for their choice to engage in a sport with an amazing safety track record.
These people are just after the money because we live in an entitled society where everyone just wants theirs.
Ambulance chasers were filing law suits before the debris was even cleared off the tarmac. The responsible party is the one who bought the ticket and sat in the seat. Victims and family have to suck it up and understand that accidents happen.

RWilliams - October 1, 2011 6:53 PM

Scott

I agree. It's really the innocent victims who are responsible. What burns me is that the NTSB will probably blame the crash on a mechanic who took a short cut, or a pilot who pulled the wrong lever, or something idiotic like that. They're going to spend all that money investigating. What a waste. We already know that it's the victims' fault! Why didn't they just get out of the way?

I just pray to god that ticket prices don't go up because of this. I would find that truly inconvenient.

Jim Herries - October 6, 2011 12:26 AM

Few seem to focus on the final link in the chain of events which actually killed the victims. The plane rolled over. Bob Hannah's wild ride ended safely simply because Bob's plane kept climbing. Ghost rolled over. Why, in 2011, would a race leave such a gaping hole inits operations? Under what circumstances should a race plane ever go inverted?

If this were 1949, before the advent of reliable electronics, telemetry, computers and avionics needed to provide a reliable autopilot, then I would agree that the pilot is the last line of defense. Damages are settled based on the standard of safety in practice at the time.

But here's the thing: today we do have the hardware that can identify when the pilot is no longer in the loop, and can take control. UAVs have it for fail-safe operations when the satellite signal is lost. Owners of expensive radio control aircraft have similar fail-safe options to preserve their investments in case control is lost. Related, the space shuttle had auto land capability, as do many navy aircraft.

These unlimited planes deliberately push the envelope with 2011 technology squeezing every ounce of power from the engine, with highly monitored telemetry helping to preserve the capital investment in the engine and airframe. But a plane with an unconscious pilot is just an uncontrolled missile. That was true in 1949, in 1998 and today.

It is unfathomable that air racing has not been required to provide a margin of safety that directly addresses uncontrolled flight. If they choose to push the planes to the edge, they have a duty to know when the aircraft is out of control and implement fail safe measures to assist the pilot and fans who are at risk from that choice.

Doug Omitted - October 7, 2011 3:56 PM

Mr. Danko. It is because of attorneys like you that our nation has become the most litigious in the world. And because it is the most litigious in the world, we can now no longer afford to make the things we used to make, nor do the things we used to do, without an attorney involved. And because our law changing bodies (the Senate and the House) are so full of attorneys, changing the laws will never be an option.

Given your example of the person in the crosswalk, isn't it also the responsibility of the pedestrian to look before he enters a crosswalk, or to continue looking as he crosses? Oh, that's right. It's because the laws are written (by lawyers I might add) to make it illegal for a person in a car to hit someone in a crosswalk. I can't tell you how many times I've seen people walking across the street without looking as they are walking. Or what about someone who gets millions of dollars for spilling hot coffee on their lap? Where was THEIR responsibility? As a holder of many different stocks, I've noticed lately how attorneys are now cashing in on the "class action lawsuit" business. Little work; lots of money. Each person that has a legitimate complaint ends up getting $.0000000001 of every dollar the attorney gets.

I agree with Jim and Scott. Where is the spectator's responsibility in this? As sad as I feel about the loss of life and injuries at this event, that plane could have just as easily hit someone 20 miles away. Would the race organizers be responsible then? I was at that race. I was 150 yards from where the plane hit. If injured, would I feel that I would have had a claim against the pilot or his crew? Sure I would. But not the organizers. They had nothing to do with that plane going out of his control. Unfortunately, the "deep pockets" rule all you attorneys seem to use will surely render a suit against the organizers and cause the event to no longer be able to continue due to the insurance costs. As for birds, yes, birds can cause a plane to come down (remember the U.S. Airways / Hudson crash?). I'm sure there were plenty of attorneys wanting to sue the city for having parks where birds could land, or residents for feeding the birds, or the airport for not taking necessary steps to rid the city of birds. Why not sue God for crating the birds? Oh, that's right. Cuz HE doesn't have any MONEY!

So, the next time you wonder why America is out of work, chances are it has something to do with an attorney. The next time you see a manufacturer go out of business because they can't afford the liability insurance, chances are it has something to do with an attorney. The next time your medical premium goes up, chances are it has something to do with an attorney. If you see a business having trouble surviving because it has to now place stickers on all their buckets warning that "this device can be a drowning hazard", it probably has something to do with an attorney. Why else do you think foreign companies are flourishing when Americans are out of work. Let me give you a clue. It's probably because they don't have (nor need) attorneys.

Life is dangerous. Get over it. If you can't, wrap yourself with bubblewrap and stay at home.

tom - October 7, 2011 7:43 PM

The crosswalk is an example of what is wrong with current legal thinking. The crosswalk is a "fictitious" area in that it only exists in written word on a piece of paper. To think that a piece of paper ensures safety in this special area is absurd.

Only a fool would assume that they are safe if the law is followed.

The irony of the crosswalk is that the pedestrian has the advantage in not getting hit by a car. It is a simple task to see if no cars are coming when you cross the street. On the other hand a person driving a car has many other things to manage. Putting the legal burden of the pedestrians safety in the driver's hands is nothing more than Socialism. Why should a driver have to look out for the safety of the pedestrian?

In Costa Rica, pedestrians have absolutely no rights in the road right of way - its basically the same laws that apply to trains.

And guess what? There are no problems with crazy, psycho drivers running down pedestrian en mass.

As far as the air races, they were there before people moved into the area. So its on the people.

Ironically, people were allowed to camp under pylons and go out in the desert to watch the races. It turns out that the infield is the safest place. You see, when an airplane quits flying, it becomes ballistic and "flies" into the outfield. (Consider what happens when you spin a stone on a string and let go of the string.)

Lawyers would have us all believe we are all victims and need their wares.

That is so pathetic.

Whatever happened to "Home of the Brave?"

Diana Morgan - October 11, 2011 8:30 AM

We slaughtered them, made the bison they fed on extinct, and their teepees were not ice proof. It really is an American shame.

Tom - October 17, 2011 6:14 AM

Anti-lawyer/anti-lawsuit proponents always seem to ignore one important fact - lawyers generally don't sue for themselves, they do so on behalf of clients. Even the hated "ambulance chasers" have clients. If the public at large believes that such suits are so detrimental to our well being, then they could easily stop bringing them. But this is a free market society, even more so because of all the lobbying by the conservative forces that generally decry trial lawyers. Thus, the only reason there are a lot of lawyers and a lot of lawsuits is because there is a demand for it in the market place. Once again, lawyers are not the source of that demand - the clients are. Those who complain about lawyers need look no farther than themselves for one of the important contributors to the so-called "problem."

Jim Herries - October 20, 2011 10:51 PM

I was searched each time I entered the grounds at Reno, so evidently the government and organizers feel a certain responsibility for safety. The grandstands were constructed under contract, and if they had fallen down on me, I might reasonably have expected compensation for my trouble, and for an assessment of how well meaning people could have allowed such a lapse.

Same applies to the air races. The crash exposed a specific, potentially repeatable scenario in which an incapacitated pilot is unavailable to apply his or her skills and experience to save themselves and others from harm. The deliberate choice to dismiss that scenario is no different than AirTrans' fateful decision. Bob Hannah's wild ride was the warning. If a body count won't spur the right changes to occur, then maybe money is actually more important to the defendants than to the victims' lawyers.

I have no harm that money could fix. If that plane goes out of control a fraction of a second later, I am not typing this. So my focus is not the money, it's the prevention of future accidents. I can't engineer a stronger plane, but I can ask why a 485mph plane should EVER be permitted one second of uncontrolled flight, much less six or seven seconds.

Mike Danko - October 23, 2011 8:23 PM

Thanks for the comment, Jim. Hearing from people who were there always puts things in a different light.

Mike Danko

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